C(2019) 5640 final
Mr Martin Pigeon
Corporate Europe Observatory
Rue d’Edimbourg 26
DECISION OF THE EUROPEAN COMMISSION PURSUANT TO ARTICLE 4 OF THE
IMPLEMENTING RULES TO REGULATION (EC) NO 1049/20011
Your confirmatory application for access to documents under
Regulation (EC) No 1049/2001 - GESTDEM No 2019/1887;
2019/1889; 2019/1890; 2019/1892; 2019/1894; 2019/1902; 2019/1913;
2019/1914; 2019/1916; 2019/1918; 2019/1919; 2019/1920; 2019/1921;
Dear Mr Pigeon,
I refer to your email of 22 May 2019, registered on 24 May, in which you submit a
confirmatory application in accordance with Article 7(2) of Regulation (EC) No
1049/2001 regarding public access to European Parliament, Council and Commission
documents2 (hereafter ‘Regulation (EC) No 1049/2001’).
Please accept our apologies for this late reply.
SCOPE OF YOUR REQUEST
In your initial application of 25 March 2019, addressed to the Directorate-General for
Research and Innovation, you submitted several access to documents requests whereby
you requested access to:
‘[…] from the Research Commissioner Moedas and/or members of his cabinet, as well as
from DG RTD, any document matching the following criteria:
- between January 1st 2015 and today (22nd of March 2019),
Official Journal L 345 of 29.12.2001, p. 94.
Official Journal L 145 of 31.5.2001, p. 43.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
- including briefings, reports, correspondence (email or other), including all
attachments to the said correspondence,
- a list of all meetings, as well as agendas and minutes or any other reports of
- from, to or mentioning the lobby group Primary Food Processors, or any body
acting on its behalf or together with it’.
The entities mentioning the lobby group Primary Food Processors, as determined by the
Directorate-General for Research and Innovation are the following: Bio-based Industries
Consortium; European Bioeconomy Alliance; Europabio; Bio-Based Industries Joint
Undertaking; Confederation of European Paper Industries; European Bioplastics; the
lobby group ePURE; Bayer, BASF, AB Inbev, Cargill, DSM, Dupont, Novozymes,
Novamont, P&G, Total, Unilever, Südzucker, Biochemtex; the lobby group Primary
Food Processors; the European Association of Sugar Producers; the lobby group COPA-
COGECA; the lobby group European Seeds Association; the lobby group FEDIOL; the
Confederation of European Forest Owners; the lobby group Starch Europe; the Forest-
based Sector Technology Platform, or anybody acting on its behalf or together with them.
After examination of the scope of your request, it appeared that your applications
concerned a very large number of documents, which would need to be assessed
individually. Please note that, the General Court recognised in its judgement in Ryanair v
that the provisions of Article 6(3) cannot be evaded by splitting requests.3
Hence, your requests were treated as one request.
After it became clear that your application concerned a large amount of documents, the
Directorate-General for Research and Innovation engaged in a discussion with you and
sent you several emails in order to avoid an excessive administrative burden, while
allowing you to receive the requested documents.
In particular, the Directorate-General for Research and Innovation sent you three emails
before taking the decision to unilaterally restrict the scope of your request.
The Directorate-General first sent you an email on 10 April 2019, where it informed you
that you had submitted a very wide-scope request that would need to be narrowed down.
The Directorate-General for Research and Innovation suggested two options, namely
either to restrict the scope of your request to meetings held by the senior management of
the European Commission and to documents related to the meetings published in the
Transparency Register or to restrict the scope of your request to documents of the senior
management and limit the number of requests to three of your choice.
You replied to this proposal on 18 April 2019 and you suggested your own restriction of
the scope, but the scope of your request remained too broad to be handled within the
15+15 deadline provided for in Article 8 of Regulation (EC) No 1049/2001.
3 Judgment of the General Court of 10 December 2010, Ryanair v Commission
EU:T:2010:511, paragraph 34.
Therefore, the Directorate-General for Research and Innovation contacted you a second
time in order to further restrict the scope of your request.
By email of 25 April 2019, you proposed that your request should be treated in batches,
meaning essentially that part of it would be treated within the prescribed deadline and the
remaining part after this deadline.
The Directorate-General for Research and Innovation sent you a third email on 2 May
2019 where it informed you that the practice of sending documents in batches is not used
by the European Commission.
During its correspondence with you, the Directorate-General for Research and Innovation
also informed you of the different steps that the handling of your request would require.
These steps include, among others, the search for documents related to the criteria as per
your request, consultation with the operational units within the Directorate responsible
for the requested documents, retrieval and establishment of a complete list of the
documents falling under the scope of your requests, scanning of the documents which are
not in pdf format, the preliminary assessment of the content of the documents in light of
any potential exceptions under Article 4 of Regulation (EC) No 1049/2001, the
consultation of third parties, authors of documents concerned, the final assessment of the
documents in light of the results of the consultations of different services and/or third
parties, the redactions of the relevant parts falling under exceptions of Regulation (EC)
No 1049/2001, the preparation of the draft reply and internal review of it, formal
approval of the draft decision, final checks of the documents to be partially released
(scanning of the redacted versions, with particular attention to personal data) and
dispatch of the reply.
In your last email of 6 May 2019, you raised different concerns regarding the handling of
The Directorate-General for Research and Innovation replied to some of these concerns
in the initial decision. Nonetheless, given the number of documents, which still remained
to be assessed and the limited time limit before extension of the deadline that had left, the
Directorate-General for Research and Innovation considered that it would not be
possible, to carry out the assessment required under Regulation (EC) No 1049/2001,
within the time limits provided for in that regulation.
Consequently, the Directorate-General for Research and Innovation unilaterally restricted
the scope of your initial application to documents from or to BIC (Bio-based Industries
Consortium), including briefings, reports, correspondence (email or other), including all
attachments to the said correspondence, a list of all meetings, as well as agendas and
minutes or any other reports of such meetings.
Furthermore, the Directorate-General for Research and Innovation limited the time
period of the request between 1 May 2016 and 22 March 2019 (the date of the initial
request), and, in order provide you with as many documents as possible, to documents
which can be disclosed without consultation of third parties, with the redaction of the
mere personal data.
Therefore, the Directorate-General for Research and Innovation, identified and disclosed,
with the exception of personal data, in total 16 documents.
In your confirmatory application, you contest the way the unilateral restriction of the
scope of the request was done at initial stage. Consequently, the scope of the
confirmatory decision will be limited exclusively to this aspect.
ASSESSMENT AND CONCLUSIONS UNDER REGULATION (EC) NO 1049/2001
When assessing a confirmatory application for access to documents submitted pursuant
to Regulation (EC) No 1049/2001, the Secretariat-General conducts a fresh review of the
reply given by the Directorate-General concerned at the initial stage.
As part of this review, the European Commission has carried out a renewed, thorough
search for possible documents falling under the scope of your request.
Following this review, I regret to inform you that I have to confirm the position of the
Directorate-General for Research and Innovation, insofar as the unilateral restriction of
the scope of your initial application is concerned.
2.1. Unilateral restriction of the scope of the initial application
In your confirmatory application, you contest the position of the Directorate-General for
Research and Innovation as regard the unilateral restriction of the scope of your (initial)
As a preliminary remark, I note that the Court of Justice recognised in its judgment in Guido Strack v Commission
that in case of wide-scope requests (requests that involve a
very long document or to a very large number of documents) ‘institutions may, in
particular cases in which the volume of documents for which access is applied or in
which the number of passages to be censured would involve an inappropriate
administrative burden, balance the interest of the applicant for access against the
workload resulting from the processing of the application for access in order to safeguard
the interests of good administration’. This practice was also recognised by the Court in
its judgment in EnBW Energie Baden-Württemberg v Commission
You argue, in your email of 6 May 2019, that you had agreed to further limit the scope of
your request to documents relating to contact between the Directorate-General for
Research and Innovation and six of the original lobby actors, namely Bio-based
Industries Consortium, Bio-Based industries Joint Undertaking, Europabio, BASF, Bayer
and European Bioeconomy Alliance.
4 Judgment of the Court of Justice of 2 October 2014, Guido Strack v Commission
, C-127/13 (hereafter
‘Guido Strack v Commission’
EU:C:2014:2250, paragraphs 26-28.
5 Judgment of the General Court of 22 May 2012, EnBW Energie Baden-Württemberg v Commission
T-344/08 P, EU:T:2012:242, paragraph 105.
In this context, I note that the original scope of the 15 requests initially submitted by you
covered many different entities. The mere search, preparation and categorisation of a list
containing all the documents concerned, would already have entailed an important
administrative burden for the European Commission’s services in charge.
Furthermore, it immediately became clear that it would not have been possible to handle
such a request within the legal deadline of 30 working days.
These estimates also take into account the fact that the staff concerned in the Directorate-
General for Research and Innovation would have to deal with other tasks and
applications in parallel with the handling of your initial application. The Directorate-
General for Research and Innovation already explained to you, in a detailed manner, the
different steps that the handling of your request would require. In addition to this, I note
that the final checking of the released documents could be particularly burdensome, in
case the documents include a large amount of personal data6, which is often the case
when many documents are concerned.
As already mentioned, the Directorate-General for Research and Innovation engaged in a
dialogue with you in order to reach a fair solution, which is both respecting your citizens’
rights and avoiding an excessive administrative burden.
In this context, I would like to point out that the restricted scope of your request that you
suggested in your email of 6 May 2019, although limited to six entities, also concerned a
considerable amount of documents, namely at least 356. Please note that this figure is a
minimum, as it should be taken into account that those documents have been identified
through a search in the European Commission’s corporate document management
system, with using as key words the names of the entities involved and not, for instance,
the names of the legal representatives. Therefore, the number would have been even
higher if those representatives were included in the search.
Therefore, I note that it would not have been possible for the Directorate-General for
Research and Innovation to handle your application for the remaining time, even with the
restriction that you suggested in your email of 6 May 2019. The further restrictions you
suggested were not sufficient to adequately help services reduce the scope of your
request. I would like to point out in this context that the fair solution under Article 6(3) of
Regulation (EC) No 1049/2001 may concern only the number and content of the
documents applied for but not the deadline for replying. 7
Furthermore, I note that the Directorate-General for Research and Innovation informed
you on several occasions that, if upon receipt of the initial reply, you would still be
interested in having access to more documents, you remain free to submit a new access to
Regulation (EU) 2018/1725 of the European Parliament and of the Council of 28 October 2018 on the
protection of natural persons with regard to the processing of personal data by the Union institutions,
bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No
45/2001 and Decision No 1247/2002/EC, L 295 of 21.11.2018, p.39.
7 Judgment in Guido Strack v Commission
, cited above, paragraph 26.
documents request, the scope of which should be equally manageable within the deadline
of 15+15 working days.
Indeed, after sending you the initial reply on 16 May 2019, you submitted a new initial
request for access to documents regarding the remaining lobby actors, which has been
registered under reference number GESTDEM 2019/3075 on 27 May 2019.
Consequently, I consider that the decision of the Directorate-General for Research and
Innovation to unilaterally restrict the scope of your initial application was in line with the
principle of proportionality and consisted with the applicable case law of the EU Court.
MEANS OF REDRESS
Finally, I draw your attention to the means of redress available against this decision. You
may either bring proceedings before the General Court or file a complaint with the
European Ombudsman under the conditions specified respectively in Articles 263 and
228 of the Treaty on the Functioning of the European Union.
For the Commission